HomeMy WebLinkAbout05-12-14 (2) y. � ., � > � r z� . ,. �
a
� " �"
�
,,c-� � =�'��r�°rt
co rrt �
IN THE COURT OF COMMON PLEAS � =� � �-' Q
OF CUMBERLAND COUNTY, PENNSYLVANIA � � �� � r:,% �
�__ .._ e�� r..� .::y v
IN THE MATTER OF ) Orphans' Court Division " � � '' ` � `'
..� �--, ..� —o —.r —rt
�� � A, —°3
I ' c,-r t.:> —rZ
THE SPECIAL NEEDS TRUST FB/O ) No. �.I-l�'�`1��� .=' � ►-� � `n-'r
RANDOLPH Q. SABRIC, an incapacitated ) � f-• � °
person ) �
PETITION TO APPOINT SUCCESSOR INDIVIDUAL CO-TRUSTEE
PURSUANT TO 20 PA. C.S.A. & 7764
Petitioner, First National Trust Company, by and through its counsel, Knox McLaughlin
Gornall & Sennett, P.C., files the foregoing Petition to Appoint Successor Individual Co-Trustee
Pursuant to 20 Pa.C.S.A. §7764, stating as follows:
Background
1. First National Trust Company ("First National") is a nationally chartered trust
company, with a principal place of business at One F.N.B. Boulevard, Hermitage, Pennsylvania
16148.
2. First National is the corporate co-trustee of the Special Needs Trust for the
Benefit of Randolph Q. Sabric, an incapacitated person(the "Trust").
3. Randolph Q. Sabric is an adult incapacitated person, 44 years old, currently
residing at Pleasant Ridge Manor, a long-term skilled nursing facility located in Erie County at
8300 West Ridge Road, Fairview, Pennsylvania 16417.
4. Sherry Howland, Mr. Sabric's sister, was appointed the individual co-trustee of
the Trust.
5. On November 3, 2013, Sherry Howland passed away.
��
.
�
The Liti�ation and Trust
6. In 1990, Randolph Q. Sabric, by and through his guardian ad litem, Sherry
Howland, filed a personal injury lawsuit in the Court of Common Pleas of Cumberland County,
Pennsylvania, at docket no. 1990-1157 (the "Litigation").
7. On or about May 1, 1996, Sherry Howland, guardian ad litem of Randolph Q.
Sabric, established the Trust for the express purpose of paying Mr. Sabric's special needs
through the receipt of any funds realized in the Litigation. (See May 1, 1996, Trust, attached
hereto at Exhibit A).
8. Sherry Howland and First National were appointed co-trustees of the Trust. (See
Exhibit A).
9. On July 9, 1999, the Honorable J. Wesley Oler, Jr., entered an Order approving a
settlement in the Litigation (the "July 1999, Order"). (See July 1999, Order, attached hereto at
Exhibit B).
10. Contemporaneous with the July 1999, Order, the Trust was amended. (See
Amendment to Trust, attached hereto at Exhibit C).
11. The Amendment to Trust maintained Sherry Howland and First National as co-
trustees, stating that any successor co-trustees shall be appointed by the Court:
In the event of either co-Trustees' inability to act or continue to act
as co-Trustee for any reason,the successor co-Trustee shall be any
person or entity as is appointed by the Court.
(See Exhibit C, p. 7, ¶6(A)).
- 2 -
� ..W � ..}. � �,� �,�n � ,� a__,n,� ��� :�.., �m m.:� ,� _
� �-
12. The Amendment to Trust further provides that the Court of Common Pleas of
Cumberland County, Pennsylvania shall retain jurisdiction over the Trust. (See Exhibit C, p. 4, ¶
5(A)(5)).
Pronosed Successor Individual Co-Trustee
13. As noted above, Sherry Howland passed away on November 3, 2013. Thus, when
Sherry Howland died she left the office of individual Co-Trustee vacant.
14. Under the Trust, a successor individual co-trustee must be appointed by this
Court, which expressly retained jurisdiction over the Trust.
15. 20 Pa.C.S.A. § 7764(c), regarding filling a vacancy in trusteeship for a
noncharitable trust, states as follows:
(c) Filling vacancy for noncharitable trust. —A vacancy in a
trusteeship of a noncharitable trust that is required to be filled shall
be filled in the following order of priority:
(1) by a person designated in or pursuant to the
provisions of the trust instrument to act as successor
trustee;
(2) by a person appointed by unanimous written
agreement of the qualified beneficiaries; or
(3) by a person appointed by the court.
The Proposed Successor Individual Co-Trustee
16. Erika Howland is an adult individual currently residing at 3512 Melrose Avenue,
Erie, Pennsylvania 16508. Erika Howland is Sherry Howland's daughter and Mr. Sabric's niece.
- 3 -
�
17. Erika Howland is willing to serve as the Trust's successor individual co-trustee.
A copy of the Consent & Acceptance of Appointment of Erika Howland is attached hereto at
Exhibit D and incorporated herein by reference.
18. First National also consents to Erika Howland's appointment as the Trust's
successor individual co-trustee. As such, all interested parties consent to the requested relief.
19. In light of the foregoing, including the attached Consents executed by Erika
Howland, First National requests that the Court approve Erika Howland's appointment as the
Trust's successor individual co-trustee.
20. Lastly, First National is entitled to reimbursement from the Trust for all costs and
fees associated with the instant Petition pursuant to 20 Pa.C.S. § 7769(a)(1), as an expense
incurred in the Trust's administration.
- 4 -
�a. �,�a .r, ���..:� ��,,,� ��.�:�, :�.�--�.e �.��..,..� �.�,.,,�-,� —,�
� �.��,-,�,.�.�,�,�.�..x._ .„�� ,
. u
.
WHEREFORE,the Petitioner, First National Trust Company,respectfully requests that this
Honorable Court enter an order: 1) approving and appointing Erika Howiand as the successor
individual Co-Trustee of the Special Needs Trust for the Benefit of Randolph Q. Sabric; 2)that
First National is entitIed to reimbursement from the Trust for all costs and fees associated with the
instant Petition, and; 3) such further relief as this Court deems just.
Respectfully submitted,
KNOX McLAUGHLIN GORNALL&
SENNETT, P.C.
BY: .---�—=- —�---�
Michael J. Musone, Esq.
Attorney I.D. #306682
120 West Tenth Street
Erie, Pennsylvania l6501
(814)459-2800
Attorneys for Petitioner,
First National Trust Company
CALDWELL& KEARNS, P.C.
BY G�,,..�J��'�
rett M. Woodburn, Esq.
Attorney I.D. #81786
3631 North Front Street
Harrisburg, PA 1711 Q
(717) 232-7661
Attorneys for Petitioner,
First National Trust Company
1421 U-001IFL"8912
5
.
IN THE MATTER OF ) IN THE COURT OF COMMON PLEAS
) OF CUMBERLAND COUNTY,
THE SPECIAL NEEDS TRUST FB/O ) PENNSYLVANIA
RANDOLPH Q. SABRIC,an incapacitated )
person ) Orphans'Court Division
)
) No.
)
CONSENT&ACCEPTANCE OF APPOII�ITMEIVT
The undersigned,First National Trust Company,hereby consents to and accepts the
appointment of Erika Howland as a successor individual Co-Trustee of the Special Needs Trust
for the Benefit of Randolph Q. Sabric,an incapacitated person,as identified in the foregoing
Petition.
FIRST NATIONAL TRUST COMPANY
By: l
Monica L. anrahan,
Clicnt Advisor
N 1438142.v1
IN THE MATTER OF ) IN THE COURT OF COMMON PLEAS
) OF CUMBERLAND COUNTY,
THE SPECIAL NEEDS TRUST FB/O ) PENNSYLVANIA
RANDOLPH Q. SABRIC, an incapacitated )
person ) Orphans' Court Division
)
) No.
)
ACCEPTANCE OF APPOINTMENT
The undersigned Erika Howland hereby accepts the appointment of successor individual
Co-Trustee of the Special Needs Trust for the Benefit of Randolph Q. Sabric, an incapacitated
person, as identified in the foregoing Petition.
�:.... ..�.
%r.
� rika Howl d �
�°
Subsc ' d sworn ef re me
this day of 2014
.
ic
��.
NOTARIAL SEAL
KRI8TINE VALIiMONT
# 1438142.v1 Not�ry Pubilc
ERIE ClTY,ERIE COUNTY
My�Comml�tion Expirea Nov 24,201�1
. .
�
SPECIAI� NEEDS TRUST FOR BENEFIT OF RANDOLPH Q. SABRIC.
AN INCAPACITATED PERSON
THIS TRUST AGREEMENT is made this 1ST day of M�y, 1996, between Sherry
Howland, guardian ad litem of Randolph Q. Sabric (hereinafter called the "Grantor")
and John Sabric, (hereinafter called the "Trustee"), as amended on fhe 7�' day of .
�
�i� 9999 wlth the amended portions appearing hereinafter in italicized
i ��� .
and bold form.
WHEREAS, the beneficiary hereunder, Randolph Q. Sabric, is the Pfaintiff in a
certain action for damages for personal injury filed to Case No. 1157 Civil 1990, entitled
"RANDOLPH Q, SABRIC, Plaintiff v. ROXY'S CYCLES, INC., KAWASAKI HEAVY
INDUSTRIES, LTD., a Japanese Corporation; KAWASAKI HEAW INDUSTRIES, INC.,
a New York Corporation, KAWASAKI MOTORS CORP., U.S.A.; MQTO-PEAK
PAULSON, U.S.A.; JOHN DOE(S) and/or MARY DOE(S), Ua or dibla STARR'S
HONDA AND STARR'S HONDA AND STARR'S HONDA, AND YAMAHA, Defendants
v. JOHN J. SABRIC and SHARLEE JOAN CORNELIUS SABRIC, Additional
Defendants", in Cumberland County, Pennsylvania; and
WHEREAS, Randolph Q. Sabric's sister, Sherry Howland, of 161 Driscoll Court,
� Girard, PA 16417 as a result of a Petition filed pursuant to Pa.R.C.P. 2059 and 2056
has been appointed his guardian ad litem in said litigation; and
WHEREAS, the Pennsylvania Rules of Civil Procedure state at Rule 2064(a)
that no action to which an incapacitated person is a party shall be compromised,
1
EXHIBIT A
, ,
settied, or discontinued except after approval by the Court pursuant to a petition
presented by any party in interest; and
WHEREAS, with respect to his claim against the Defendant Starr's Honda, the
said Plaintiff, Randolph Q. Sabric, through his said guardian ad litem, has presented a
petition to the Court requesting approval of
(1) a proposed settlement in the amount of$70,000.00 with that defendant;
and
(2) distribution of the settlement amount as folfows:
(a) first, for payment of reasonable attorney's fees and costs in the
amount of$.�3.333.34 in fees and $25 442.5 in costs, and
(b) second, for any amount for which the Department of Public Welfare
of the Commonwealth of Pennsylvania has a valid lien against the
settlement amount; and
(c) third, to any other entity that has a valid lien against the settlement
amount; and
(d) fourth, the balance to the Trustee under this Trust Agreement; and
WHEREAS, as set forth in that petition, the Commonwealth of Pennsylvania,
Department of Public Welfare, has waived any claim it may have to any part of the
settlement amount paid by Defendant Starr's Honda; and
WNEREAS, the other potential lienors, (1) Blue Cross of Western Pennsylvania;
and (2) Capital Blue Cross, have indicated as follows:
2
(a) that Blue Cross of Westem Pennsylvania does not have a claim,
by subrogation, to any part of the amount paid in settlement by Defendant
� Starr's Honda; and
(b) that Capital Blue Cross, which is subrogated to potentiaf claim of
upwards of$736,513.76 will settle said subrogation claim, insofar as it
constitutes a claim against the amount paid in settlement by Starr's
Honda, for the amount of$5,000.00; and
WHEREAS, this Trust Agreement shall become effective on the date the said
petition of the guardian ad litem is granted pursuant to the Court's Order; and
WHEREAS, said petition also seeks Court approval of the payment to the
Trustee of this Trust Agreement; and �
WHEREAS, the above named guardian ad litem of Randolph Q. Sabric, having
the approval of the Court, desires that any amount received in settlement or by verdict
or award or judgment, from the said defendant in the above identified litigation, and any
amounts received in settlement or by verdict or award or judgment from any other
defendant in this or in any other litigation, after deduction tnerefrom of reasonable
attorney's fees and costs and after payment therefrom of any valid claim of subrogation
or lien of the Commonwealth thereagainst and after payment of any other amount owed
to a third party having a valid subrogation interest, be placed in an irrevacable trust for
the benetit of Randolph Q. Sabric, for the purpose of paying for the special nesds of
the said Randolph Q. Sabric, including (1) such amounts as will supplement (but not
3
, .
supplant) any amounts for which Randoiph Q. Sabric may be eligible under public
benefit programs; (2) the expenses of the bene�ciary's entertainment, recreation,
travel, vacation, and companionship; and (3) legal fees and costs for his continued
legal representation, specifically with respect to the above identified litigation, with
respect to any other litigation out of which he may expect to receive awards or amounts
paid in settlement, and with respect to advocating his claims for public benefits or
social services; and
WHEREAS, the Grantor desires that this Trust Agreement provide, on the death
of the beneficiary, for the repayment to the Department of Public Welfare of any
amounts paid by said Department on behalf of the beneficiary, insofar as said
repayment is required by state or federal law;
NOW THEREFORE, the parties hereto hereby agree as foltows:
7. TRUST PROPERTY
The Grantor, desiring to establish an irrevocable trust, hereby assigns to the
Trustee all rights, title, and inter�st in and to such property as is set forth in Schedule
"A" hereto attached, that is, $70,000.00 less $ 23�333.34 in attorney's fees and $
25.442.59 in litigation costs, and Isss $ 0.00 to be paid to Capita! Blue Cross, for a
tatal of$ 53,775.93, and the Trustee shall hold all such property, together with any
other property which may be added to it, IN TRUST, for the purposes and on the
conditions set fo�th in this agreement. .
4
2. ADDITIONAL PROPERTY
The Grantor reserves the right to herself or to any other person at any time, to
add to the corpus of the trust herein created, and any property so added shall be held,
administered and distributed as part of such trust.
3. DISPOSITIVE PROVISIONS
(A) Until the death of the beneficiary, Randolph Q. Sabric,
(1) As much of the net income and the principal as the Trustee,
in the Trustee's sole, absolute and uncontrolled discretion, may
from time to time think desirable shall be paid or applied in such
amounts or proportions as the Trustee may from time to time think
appropriate to or for the benefit of Randolph Q. Sabric consistent
with, and for, the express and limited purposes outlined above; and
(2) Any net income not so paid or applied shall from time to time
be accumulated and added to principat.
(B) In the event of death of Randolph Q. Sabric, subject to possible
funeral expense payments for Randolph Q. Sabric (which the Grantor
authorizes but does not direct the Trustee to make), the then-remaining
principal shall be paid
(1) to the heirs at law of Randolph Q. Sabric; provided that
(2) only to the extent required by federal or state law, upon the
death of the beneficiary, any remainder of the trust property shall
5
/ �
first be used to defray the costs to the Department of Public
Welfare of Title XIX Medical Assistance (MA) benefits paid on
behalf of the beneficiary p/an pursuant to 4Z U.S.C.A. §�396 et
seq..under a state
(C) The Grantor's primary concern is for the care of Randolph Q.
Sabric and for the payment of any of his funeral expenses, but only to the
e�ent that funds from this trust or the trust itself would not cause
Randolph Q. Sabric tc lose what the Trustee, in the Trustee's sole
opinion, considers to be significant benefits from federal, state or local
entitlement programs, including buk not limited to mental health,
retardation, income maintenance, residential and medical assistance. It is
the intention that this trust serve as a source of maintenance or support
for Randolph Q. Sabric to the extent that publicly funded benefits and
programs are not available to accomplish those purposes. Accordingly,
the Trustee may give such consideration to the other income and
resources available to Randolph Q. Sabric including the above mentioned
. publicly funded benefits and programs, as the Trustee, in the Trustee's
sole discretion, may think appropriate.
(D) The Grantor, without limiting the Trustee's sole, absolute and
uncontrolled discretion to pay or apply income and principal, directs the
Trustee to consider paying the expenses of the entertainment, recreation,
6
� ,
travel, vacations, and companionship of Randolph Q. Sabric, as well as
any legal fees or costs of Randolph Q. Sabric in litigation ar for his legal
representation or for advocating and monitoring social services for his
benefit, The legal fees and expenses of litigation referred to herein
specifically include, but are not limited to, fees and expenses incurred in
connection with Case No. 1157 Civil 1990, Court of Common Pleas of
Cumberland County, and any appeal thereupon.
4. PROVISIONS RELATiNG.TO THE TRUST
The following provisions shall apply to the trust created above.
(A) The Trustee may make distributions called for under this trust in
such of the following ways as fhe Trustee deems best: (1) directly to the
beneficiary; (2) to the legally appointed guardian or conservator of the
beneficiary; (3) to any relative or friend who is caring for the beneficiary;
(4) directly to persons, corporations or other entities for the use and
benefit of the beneficiary.
{B) The interest of the beneficiary or any distributee of the trust in
principal or income of the trust or any share thereof shall not in any way
during his or her {ifetime be subject to the claims of his or her c�editors or
others, or to legal process, and may not be voluntarily or involuntarily
alienated or encumbered.
7 .
� .
(C) Any income accrued or undistributed at the terrnination of any
estate or interest under this trust or any share thereof shall be paid by the
Trustee as income to the persons entitled to the next successive interest
in the proportions in which they take such interest.
(D) The entire trust estate and accumulated income shall be
terminated and the trust estate distributed free of trust to Randolph Q.
Sabric if, and only if, the following criteria are met:
(1) Randofph Q. Sabric demonstrates an ability to carry on
competitive employment and has a history of continual employment
for a period of one year; and
(2) As a result of Randolph Q. Sabric's ebility to work, he would
not be considered eligible or would cease, permanently, to be
eligible for any programs designated to provide assistance to
disabled or needy persons.
5. POWERS OF.TRUSTEE
The Trustee is hereby empowered:
_ (A) To hold, possess, manage and control the trust estate for the
purposes set forth.
(B) To invest and reinvest alf or any part of the trust estate in such
stocks, bonds, mutual funds, common trust funds, securities or other
property, real or personal, including unproductive property used as a
s
� ,
residence for the beneficiary, as the Trustee shall deem proper, without
regard to statutes limiting the property which Trustee may purchase and
without regard to any principle of diversification.
(C) To sell, transfer, exchange, or otherwise dispose of, any part of the
trust estate, for cash or on terms, at public or private sale, and to pledge
or encumber the same.
(D) To lease any r�al estate held hereunder for any term,
notwithstanding the duration of the trust.
(E) To execute and deliver any deeds, leases, assignments or other
instruments as may be necessary to carry out the provisions of this trust.
(F) To open and maintain in the name of the trust, bank accounts and
safe deposit boxes, and to take other adequate measures far the
safeguarding of property.
(G) To exercise any subscription right in connection with any security
held hereunder, and to consent to or participate in any reorganization,
consolidation, or merger of any corporation.
(H) To apportion between principal and income, any receipt or
expenditure which in the Trustee's opinion should be apportioned.
(I) To engage attorneys, accountants, agents, social workers,
investment counselors and such other persons as Trustee may deem
advisable, and to make such payments therefor from income or principal
9
n +
as the Trustee may determine, and to delegate to such persons any
discretion which he or she may deem proper.
(J) To do all such acts, take alf such proceedings and to exercise all
rights and privileges, although not hereirabefore specifically mentioned,
with relation to any trust property, as if the Trustee were the absolute
owner thereof, and in connection therewith to make, execute and deliver
any instruments and to enter into any covenants or agreements binding
any trust created hereunder.
6{A) EXERCISE OF TRUSTEE POWERS IN WHOLE OR IN PART AND
D/V/SION OF POWERS OF TRUSTEE BETWEEN CO-TRUSTEES
The podvers herein grante�to the Trustee may be exerclsed in who/e or In
part, from tlme to fime, and shal!be deemed to be supplementary to and not
excls�slbe of the genera!powers of the Trustee pursuant to lav�v, and shall include
all powe�s necessary to carry the same ingo etfect.
The foregoJng are fhe genera!powers of fhe Trustee and, as sef forth in
paragraph 6(b) be/ow, these powers apply to any persons acting,joint/y as
"Trustee". As between co-frustees Sherry Ho�land and First Natlona! Trust
Company, appolnted by vfrfue of Court Order, th�y shall have apportloned
between them #he fo!lowing speclfic powers and duties:
(7) Powers of Co-Trustee First Nationa/ Trust Company
(a) the authority to make all fnvestment decisions, subjecf to
io
A a
Pennsy/vania Trusf Law which would fnclude the power set forth in
subparagraphs 5(B), (C), (0), (E), (F), (G) and(H). However,
decisions pursuant#o subparagraph 5(I) shal/be made joint/y with
the consenf of the other Co-Trustee;
(b) to open and maintain, fogether wlth the Co-Trustee, a
checking account designated wlth the name of Sherry Howland as
signor on the account specifically designated ln her capacity as
"Co-Trustee";
(c) to open and malntain a!!otheraccounts necessary to exercise
the authority set forth in subparagraph (1) above; and
(d) to charge and receive an annual fee, payabl� monthly from the
Tra�st, based on the follobving:
. *$90 per thousand on the first $ 600,000 of assets*
� 8 per thousand on the nex# $1,500,000 of assets*
$ 6 per thausand on the ne� $1,000.000 of assets*
$ �f per thousand on the exc8ss
""Account assets at marlcat value
* Wlinimum Fee$2,000
(e) PROV/DED that, to the extent required by Rule 2084(b)(4) of the
Pennsyivania Rules of Civll Procedure, the Court of Common Pleas
of Cumberiand County, Pennsylvania shall retain jurisdlction over
the trust, and shall have the right on cause shown to modify or
terminate provisions of the trust pertalnfng to the fiduciarles,
i�
o � •
although the trust shali remain otherwise irrevocable.
(2) Duties of Co-Trustee Flrst Naflona/ Trust Company
(a) to responsibly make lnvestment decisions consisfent with
applicable Pennsylvania !aw governing Trusts and to do so
following the "prudent person"investment approach; tikewlse,
investment declsions and the exerclse of powers shall be consistent
with tho terms of thls Trust;
(b) to make, keep and maintain flnancial reporfs required of
�Trustees under applicable Pennsylvania Law and those consistent
w/th standard and accepted general accounfing and f�duclary
procedures;
(c) to prepare and file tax returns;and
(d) to secure and malntain an employer's idenfification number
from fhe lnternal Revenue Servlce.
(e) PROVIDED that, fo th� exfent sQqu�red by R�le 2084(b)(4J of
the Pennsylvania Ru/es of Civi!Procedura, the Court of Common
. Pleas of Cumberland County, Pennsylvanla shall retaJn jurlsdlctfon
ov�r the frust, and s!�a!!have fhe�3ght on cause shown to modi�y oi
fermJnate provislons of the trust perfalning to the fiduciarles,
a/though the trust shalJ remain otherwise irrevocable.
(3) PQwers_of Co-Trustee Sherry How/and
12
r, � �
(a) to provide disbursements for fhe beneficiary consistent with
fhe terms of this Trust;
(bJ to make al!decisions on trusf spending and to spend
consistent with those declsions. The declsions and spending shall
� nof otherwise be inconsistent wlth the purposes of this Trust and
fhe dut�es vf Co-Trustee, Sherry How/and, as set forfh below.
lncluded w3thln t�te genera/powers, and not intended to othen+vise
Ilmit the genera!powers, fs a speclfic acknow/edgment of the power
to purchase rea!estate and a mofor vehic% and to have the vehlcle
owned by a custodial carefaker, and
{c) to charge and recelve an annuaJ fee, payable bf-annually, of s�;� .�
$1500 for the remainder of the year 9999 (fn cons3deration of fhe � �� �
�..
.,� •
,�..= .
signlfican#initia!responsibllities lncurred by the payment into the � •
. ;
_ • #�; ;�
trust, ln the year'999 of the sum of flve hundred doilars ($500.00) ; ; ;
and sach year thersafter to receive an annual fee of one thousand ,;�.� F
, • _,..
;,
doilars ($9,000.00), payable semi-annualJy. � .
(4) . Duties of Co-Trustee Sherrv H4ryland � f �1�
(a} to cooperate wlth the Co-Trustee in the exercise of their
authority and In the pQrformance of thely dufles;
(b) to madce expenditures which are not only consistent with the
terms of this Trust bui to do so fn a fashlon so as to maxlmize
13
r� • � �
� . .
continued eligibility for al!public and governmenta!beneflts which
the beneflclary currently enjoys and to which he may be entitled
during the term of this Trust;
(c) to secure regular and informed input from the beneflciary's
care providers and medical provlders and to make the expenditures
� of funds in a manner whlch is not fnconsistent wlth fhat informafion
and the needs of the beneficlary;
(cl) to extend her best efforts to acquire and maintafn a familiarity
wlth Soc1a1 Securlty regulations and other regulations re/ated to the
qua!l�Ilcatlons and entltlement to publlc and governmental benefits
to which the beneficiary may be currenfly recelving and to whlch he
may be entitled in the future and to make expenditures conslstent
with maintaining or achievfng such benefits;and
(e) to make decisions on expendlfuPes wholly independent of any
p�rsonal need or Interest.
6. SUCCESSOR TRUSTEES
(A) The sister of Randolph Q. Sabric, Sherry Nowland, has been
appolnted a successor co-Trustee by Court Order and Flrst Nattonal Trust
Company has been appointed a successor co-Trustee to act with Sherry
Howland, wfth said co-Trustee being a corporate co-Trustee. ln ihe event of
either co-Trustees'inability to act or continue to act as co-Trustee for any
14
r) ' ' v
� • r
reason, the successor co-Trustee shall be any person or enfity as is appointed
by the Court.
- (B) In the event the corporate trustee shali resign or shall for any other
reason cease to act as trustee, a successor corporate trustee shall be appointed,
. subject to the approvai of the court. .
(C) The term "trustee" as used herein shall refer to any and all those
persons acting as such, individuaily or jointly, from time to time.
(D) The individual trustees identified herein shall not be required to
. give bond or other security in anyjurisdiction where they may be called on to act.
(E) No successor individual trustee shall be obliged to examine the
accounts, records, and acts of the previous trustee or trustees or any allocation of the
trust estate, nor shall any successor trustee in any way or manner be responsible for
any act or omission to act on the part of any previous trustee. Any claim or action
against ar�y previous trustee may be filed by a successor trustee or by a beneficiary.
7. IRREVOCABILITY
The trust shall be irrevocable, and the Grantor hereby expressly waives all rights
and powers, whether alone or in conjunction with others, and regardless of when ar
from what source he or she may heretofore or hereafter have acquired such rights or
powers, to alter, amend, revoke, or terminate the trust, or any of the terms of this
agreement, in whole or in part.
$. LAW GOVERNING TRUST
15
.
, . . .
,
The situs of this trust shall be in the Commonwealth of Pennsylvania and ali
questions pe�taining to the adminis!ration of this trust or the construction or validity of
this trust shall be governed by the laws of the Commonwealth of Pennsylvania.
9. INTERCHANGEABILITY OF LANGUAGE
Words used in the singular may be read to include the plural or the plural may
be read as the singutar. Similarly, the masculine form may be read to include the
feminine and the feminine may be read to include the masculine.
89�'S30.d1trustamendcompleta
16
� . • Y.
Schedule "A"
Security Value
Cash $302,280.23
TOTAL $302,280.23
r ]
Y � r ~ f: t
�� � '
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
SHERRY HOWLAND, GUARDIAN AD : .
LITEM OF RANDOLPH Q. SABRIC, : N0. 1157 Civil 1890
. (Judge J. Wesley Oler, Jr.)
Plaintiff� :
� :
vs. :
. :
ROXI('S CYCLES, INC., ' ' : JURY TRIAL DEMANDED
KAWASAKI HEAVY INDUSTRIES, : CIVIL ACTION - LAW
LTD., a Japanese Corporation; . � �
KAWASAKI HEAVY INDUSTRIES, :
INC., a New York Corporation, : �
K14WASAKI MOTORS CORP., U.S.A.; :
MOTO-PEAK PAULSON, U.S.A.; .
JOHN DOE(S) and/or MARY DOE(S) :
tla or d/b/a STARR'S HONDA AND . ..,
YAMAHA and STARR'S NONDA AND .
STARR'S HONDA AND YAMAHA� :
Defendants. :
QRDER OF CQURT
AND NOW, - r4 day of � , 1999, , upon consideration
of the within Petition of John B. Dunn, Esquire, filed on behalf of and verified by Sherry
Howland, Guardian Ad Litem for the Plaintiff, Randolph Q. Sabric, and which Petition
requested: (1) Court approval of the settlement with all Defendants other than Starr's
1 .
EXHIBIT B
r �
t • .
� 1 r
t
i i .
Honda and Starr's Honda and Yamaha, i.e., Roxy's Cycles, Inc,; Kawasaki Heavy
Industries, Ltd., a Japanese corporation; Kawasaki Heavy Industries, Inc., a New York
Corporation; Kawasaki Motors Corp., U.S.A.; (2) Court approval of proposed
distribution of proceeds of settlement; (3) Appointment of Co-Trustees as successor
Trustes; and (4) amendment and clarification of the Special Needs Trust, and after the
hearing thereon, the Court ORDERS as failows:
(1) Approval ls given to the settlement entered into between the Guardian Ad
Litem and said Defendants for the sum of eight thousand doilars ($800,000,00).
The Guardian Ad Litem is authorized to execute the Release of said Defendants
and their insurers in the form attached to the Petition as Exhibit "B" on behalf of
Randolph Q. Sabric, and said Randolph Q. Sabric shall be bound by'its terms as
if he executed it himself after being found fully competent to do so.
(2) Approval is given to the distribution of the proceeds as follows:
The paym�nt of the balance of the settlement proceeds of
$800,000.00 to Matergia and Dunn, Esquires, in trust, for distribution
thereafter in the following manner:
2
( )
♦
� 1
1 '
� 1
t1 � .
(i) $302L164.02 to Sherry Howland and First National Trust
Company as Co-Trustees of the Speciai Needs Trust for the 6enefit of
Randolph Q. Sabric, said trust having been amended as set forth below.
The funds shaii be placed in the Trust and be administered in accordance
with the terms af the Trust;
(ii) $345.81 to Sharlee Joan Cornelius Sabric, in payment of costs of
litigation which have been advanced by her and the Plaintiff s deceased
father, John Sabric;
(iii) $222,500.00 in settlement of the subrogation claim of Capital Blue
�
� Cross;�
(iv) $6L511.15 in settlement of the Commonwealth of Pen�sylvania,
Department of Public Welfare subro�ation claim
(v) $1.812.35 in payment of outstanding litigation costs advanced by
the firm of Matergia and Dunn; and
(vi) $266�666.67 in payment of outstanding attorney's fees to
Matergia and Dunn.
(3) Sherry Howland, sister of Randolph Q. Sabric, and First National Trust
Company are appointed as Co-Trustees of the Special Needs Trust and shall
serve in accordance with the terms of the Trust, as amended hereinbelow.
Sherry Howland shall post and maintain a bond in an amount at least
equal to that which is being delivered to the co-trustee. Said bond shall be
3
� ,
� ,
� �
, ,
�• / �
security for the faithfui performance of her duties as a fiduciary. The cost
thereof shall be reimbursed by the Trust.
(4) The Trust is amended as set forth in Exhibit"J" to the Petition (which is
attached hereto) and the Trust shall now read in its entirety as set forth in
Attachment "1" to Exhibit"J".
BY THE COURT•
' J.
cc: John B. Dunn, Esquire, 530 Main St., Stroudsburg, PA 18630
O. Daniel Ansa� Esq., 3400 Logan Sq.� 18'^8 Arch Sts.� Philadelphia, PA 19103•2762
Barry Kronthal, Esq. 101 Pine St., PO Box 932� Harrisburg, PA 17108-0932
Margaret Smitherman, DPW, TPL Section-Casualty Unit, PO 6ox 8486, ^
Harrisburg, PA 17105
Sherry Howland, 61 Driscoll Cou�t, Girard, PA 16417
Jeff Baker, 1�Nat'I Trust Company, 711 State St., Erie, PA 16501
Richard Cromer, Esq., Paul J. Gitnik Centre, 1201 Broughton Rd.,
Pittsburgh, PA 17236-3469
89�•530�JIOrder8.29.99
4
� ,
.
AMENDMENT TO SPECIAL NEEDS TRUST FOR BENEFIT OF
RANDOLPH Q. SABRIC, AN INCAPACITATED PERSON
THIS IS AN AMENDMENT TO A TRUST AGREEMENT previousiy made the 1S`
day of May, 1996.
WNEREAS, the Special Needs Trust to which this is an addendum sets forth in
its introductory"WHEREAS" clauses the background by which the need and purpose
for such a Special Needs Trust arose; and
WHEREAS, the need and purpose for this Special Needs Trust continues and
based upon the anticipated receipt of additional substantial funds, there is now need
for amendment of the Special Needs Trust; and
WHEREAS, the Special Needs Trust, in its 9�' Whereas clause recites that
additional funds may be received "in settlement or by verdict or award or judgment
from any other defendant in this or in any other litigation" and that the same "be placed
in an irrevocable trust for the benefit of Randolph Q. Sabric"for the purposes for which
the Special Needs Trust was established; and
Whereas paragraph 2 of the Special Needs Trust, headed "ADDITIONAL
PROPERTY", provides that the grantor of the Trust"reserves the right to herself or to
any other person at any time, to add to the corpus of the Trust herein created, and any
properties so added shall be held and distributed as part of such Trust"; and
WHEREAS, on account of litigation which is proposed to be settled for an
additional amount of eight hundred thousand dollars ($800,000), paid from finro of the
1
EXHIBIT C
, _ �
.
remaining defendants, certain amendments, as set forth below, are necessary to
accornmodate the receipt of this substantial sum of monsy into the Trust; and
WHEREAS, as Court approval of the Amendments are required, a
contemporaneous Petition has been �led which sets forth the reasons why these
particular amendments are necessary.
NOW THEREFORE, in light of ths foregoing, the Special Needs Trust, upon
entrance of the Court Order to which this document is an exhibit, is amended as
follows:
1. Paragraph 3(B)(2) is amended by adding the fallowing underlined and
italicized language:
On{y to the extent required by federal or state law upon the death of the
beneficiary, any remainder of the Trust property shall first be used to
defray the costs to the Department of Public Welfare af Title XIX Medical
Assistance (MA) benefits paid on behalf of the beneficiary under a State
Plan �ursuant to 42 U.S.C.A. §1396 et. s�q_
2. At the conclusion of paragraph (J) of paragraph 5, there shall be added
the following heading and substantive provisions:
� 5(A). Exercise af Trustee powers in whole or in part and division of
powers of Trustee between co-Trustees
The powers herein granted to the Trustee may be exercised in
whole or in part, from time to time, and shall be deemed to be
2
� e �
supplementary to and not exclusive of the general powers of the Trustee
pursuant to law, and shall include all powers necessary to carry the same
into effect.
The foregoing are the general powers of the Trustee and, as
set forth in paragraph 6(b) below, these powers apply to any
persons acting jointly as "Trustes". As between co-trustees Sherry
Howland and First Nationai Trust Company, appointed by virtue of
Court Order, they shall have apportioned between them the
foilowing specific powers and duties:
�a) Powers of Co-Trustee First National Trust Company
(1) the authority to make all investment decisions, subject to
Pennsylvania Trust Law which would include the power set forth in
subparagraphs 5(B), (C), (D), (E), (F), (Gj and (H). However,
decisions pursuant to subparagraph 5(I) shall be made jointly with
� the consent of the ather Co-Trustee;
(2) to open and maintain, together with ihe Co-Trustee, a
checking account designated with the name of Sherry Howland as
signor on the account specifically designated in her capacity as
"Co-Trustee";
(3) to open and maintain all other accounts necessary to
execcise the authority set forth in subparagraph (1) above; and
3
� / •
•
•
(4) to charge and receive an annual fee, payable monthly from
the Trust, based on the following: '
'" $10 per thousand on the first $ 500,000 of assets`
$ 8 per thousand on the next $1,500,400 of assets`
$ 6 per fhousand on the next $1,000,000 of assets`
$ 4 per thousand on the excess
"'Account assets at marke# value
" Minimum Fee $2,000
(5� PROVIDED that, to the extent required by Rule 2064(b)(4) of
ths Pennsylvania Rules of Civil Procedure, the Court of Common
Pleas of Cumberland County, Pennsylvania sha�l retain jurisdiction
nver the trust, and shaii have the right on cause shown to modify or
terminate provisions of the trust pertaining to the fiduciaries,
afthough the trust shall remain otherwise irrevocable.
(b) Duties of Co-Trustee First National Trust Company
(1) to responsibly make investment decisions consistent with
applicable Pennsylvania law governing Trusts and to do so
following the "prudent person" investment approach; likewise,
• investment�decisions and the exercise of powers shall be
consistent with the terms of this Trust;
(2) to make, keep and maintain financial reports required of
Trustees under applicable Pennsylvania Law and those consistent
4
,
.
with standard and accepted general accounting and fiduciary
procedures;
(3) to prepare and file tax returns; and
(4) to secure and maintain an employer's identification number
from the Internal Revenue Service.
(5) PROVIDED that, to the extent required by Rule 2064(b)(4) of
the Pennsylvania Rules of Civil Procedure, the Cou�t of Common
Pleas of Cumberland County, Pennsylvania shall retain jurisdiction
over the trust, and shall have the right on cause shown to modify or
terminate provisions of the trust pertaining to the fiduciaries,
afthough the trust shall remain otherwise irrevocable.
(c) Powers of Co-Trustee Sher►x Howland
(1) to provide disbursements for the beneficiary consistent with
the terms of this Trust;
(2) to make all decisions on trust spending and to spend
consistent with those decisions. The decisions and spending shall
not otherwise be inconsistent with the purposes of this Trust and
the duties of Co-Trustee , Sherry Howland, as set forth below.
Included within the general powers, and not intended to otherwise
5
. w �
,
limit the general powers, is a specific acknowledgment of the
power to purchase real estate and a motor vehicle and to have the
vehicle owned by a custodial caretaker; and
(3) to charge and receive an annual fee, payable bi-annually, of
$1500 for the remainder of the year 1999 (in consideration of the
significant initial responsibilities incurred by the payment into the
trust in the year 1999 of the sum of five hundred dollars ($500.00)
. and each year thereafter to receive an annual fee of one thousand
dollars ($1,000.00), payable semi-annually. .
d. Duties of Co-Trustee Sherry Howl�pd
(1) to cooperate with the Co-Trustee in the exercise of their
authority and in the performance of their duties;
(2) to make expenditures which are not.only consistent with the
terms of this Trust but to do so in a fashion so as to maximize
continued eligibility for all public and governmental benefits which
the beneficiary currently enjoys and to which he may be entitled
during the term of this Trust;
' (3) to secure regular and informed input from the beneficiary's
care providers and medical providers and to make the
expenditures of funds in a manner which is not inconsistent with
� that information and the needs of the beneficiary;
(4) to extend her best efforts to acquire and maintain a
6
� ,
familiarity with Social Security regulations and other regulations
related to the qualifications and entitlement to public and
governmental benefits to which the beneficiary may be currently
receiving and to which he may be entitled in the future and to make
expenditures consistent with maintaining or achieving such
benefits; and
(5) to make decisions on expenditures wholly independent of
� any personal need or interest.
3. Paragraph 6(A) shall be replaced with the following new paragraph 6(A):
The sister of Randolph Q. Sabric, Sherry Howland, has been
appointed a successor co-Trustee by Court Order and First
National Trust Company has been appointed a successor co-
Trustee to act with Sherry Howland, with said co-Trustee being a
corporate co-Trustee. In the event of either co-Trustees' inability
to act or continue to act as co-Trustee for any reason, the
successor co-Trustee shall be any person or entity as is appointed
by the Court.
As a consequence of the above amendments, the Special Needs Trust, in its
fully amended form, is attached hereto as Attachment "1".
\89-530-dltrstam2
7
., _. ,. ... n�u�� ��� r�,., �.�.� �.,�:��,»�»�..��. �. �. „�>��,a��,�:.,�„��.����.,.�.�m���..� _
.
,
IN THE MATTER OF } IN THE COURT OF COMM4N PLEAS
) OF CUMBERLAND COUNTY,
THE SPECIAL NEEDS TRUST FB/O ) PENNSYLVANIA
R.ANDOLPH Q. SABRIC,ari incapacitated )
person } Orphans'Court Division
}
} No.
}
YERIFICATION
On this,the �� day of March,2014,the undersigned,Monica L. Hanrahan,Client
Advisor for First National Trust Company,deposes and states that the facts set forth in the
foregoing Petition to Appoint Successor Individual Co-Trustee Pursuant to 20 Pa.C.S.A. § 7764
are true and correct to the best of her knowledge, information and belief,subject to the penalties
of 18 Pa.C.S. §4904 relating ta unsworn falsification to authorities.
FIRST NATIONAL TRUST COMPANY
By: �c-�--. ��
Monica . anrahan,
Client Advisor
a�a3sinz.�i
_
.
CERTIFICATE OF SERVICE
�X
I hereby certify that I have served a copy of the within document this 7 � day of
, 2014, on the following by depositing a true and correct copy of the same in the
U.S. Ma s at Harrisburg, Pennsylvania, postage prepaid, addressed to:
Erika Howland
3512 Melrose Avenue
Erie, PA 16508
Randolph Q. Sabric
8300 West Ridge Road
Fairview, PA 16417
CALDWELL & KEARNS
By� ,E',!'����rl,l'ti- /?S l:�l�